WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Ticketmaster Corporation v. IM Panama, Donna Hawley
Case No. D2008-0577
1. The Parties
Complainant is Ticketmaster Corporation, Los Angeles, California, United States of America, represented by Pattishall, McAuliffe, Newbury, Hilliard & Geraldson, United States of America.
Respondent is IM Panama, Donna Hawley, Panama, Panama.
2. The Domain Name and Registrar
The domain name (“Disputed Domain Name”) is registered with eNom, Inc. (“eNom”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 15, 2008. On April 16, 2008, the Center transmitted by email to eNom a request for registrar verification in connection with the Disputed Domain Name. On April 16, 2008, eNom transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on April 22, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was May 12, 2008. Respondent did not submit any response except to initiate some email correspondence among it, the Center, and Complainant, indicating that it had no problem to “transfer the domain to whomever”, none of which had the effect of postponing the due date or suspending the proceedings. The Center notified Respondent’s default on May 13, 2008.
The Center appointed Mark Ming-Jen Yang as the sole panelist in this matter on May 20, 2008. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
Disputed Domain Name was registered on August 30, 2007.
Complainant has numerous registrations worldwide of the mark TICKETMASTER and variations (collectively, “TICKETMASTER Trademark”) in association with ticket agency services, entertainment services and related services and wares. Details of several of its United States of America registrations (with registration numbers and dates, and international class(es) of ware(s)/service(s)) are: 2,742,550 registered on July 29, 2003 in classes 016, 035 and 041; 2,643,508 registered on October 29, 2002 in classes 016, 035 and 041; 1,746,016 registered on January 12, 1993 in class 035; and 2,464,562 registered on June 26, 2001 in class 035.
5. Parties’ Contentions
A. Complainant
Complainant contends that the Disputed Domain Name is confusingly similar with the TICKETMASTER Trademark in which it has rights, that Respondent has no rights or legitimate interests in the Disputed Domain Name, and that Respondent registered and uses the Disputed Domain Name in bad faith.
B. Respondent
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
One requirement of fundamental due process is that a respondent has notice of proceedings that may substantially affect its rights. The Policy, Rules and Supplemental Rules establish procedures intended to assure that a respondent is given adequate notice of proceedings commenced against it, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).
In this case, the Panel is satisfied that the Center took all steps reasonably necessary to notify Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of Respondent to furnish a Response to the Complaint is not due to any omission by the Center. There is sufficient evidence in the case file for the Panel to conclude that the Center discharged its obligations under Rules, paragraph 2(a) (see Section 3, Procedural History, supra).
In case of default, under paragraph 14(a) of the Rules, “the Panel shall proceed to a decision on the complaint”, and under paragraph 14(b) of the Rules, “the Panel shall draw such inferences [from the default] as it considers appropriate”. Furthermore, paragraph 15(a) of the Rules provides that “a Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems appropriate”. Since Respondent has not submitted any evidence, the Panel must render its decision on the basis of the uncontroverted evidence supplied by Complainant.
To succeed in accordance with paragraph 4(a) of the Policy, Complainant must meet all three requirements. The Complainant must prove that: (i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain names; and (iii) the disputed domain names were registered and are being used in bad faith. Each requirement will be considered in turn below.
A. Identical or Confusingly Similar
Complainant contends that it has rights in the TICKETMASTER Trademark and that the Disputed Domain Name is confusingly similar thereto.
The Panel accepts Complainant’s contentions, particularized next, as reasoned and as supported by its evidence.
Complainant contends that it is “…a global leader in live event ticket sales. Ticketmaster sells tickets to more than 350,000 entertainment and sporting events each year, including professional sports events, the performance arts, family events, musical concerts, plays, and other events. Ticketmaster also serves more than 9,000 clients worldwide and acts as the ticketing service for hundreds of leading arenas, stadiums, performing arts venues, museums, and theaters…In 2006, Ticketmaster sold over 128 million tickets valued at over $1 billion through a network of approximately 6,500 retail Ticket Center outlets located in cities in the United States, Australia, Canada, the United Kingdom, Ireland, Northern Europe and Mexico, more than 20 worldwide telephone call centers, the web site and other Ticketmaster-branded Internet sites…. During the past year alone, Ticketmaster sold over $1 billion worth of live event ticket services under the TICKETMASTER mark....”. Accordingly, Complainant contends that its TICKETMASTER Trademark is well-known and famous in the international marketplace (and in particular, in the United States of America) among consumers of entertainment services, and accordingly, that it has, in respect of the TICKETMASTER Trademark, rights based on its substantial goodwill in the marketplace, and rights flowing from its aforesaid US trademark registrations.
Complainant contends that the Disputed Domain Name is identical or confusingly similar to its TICKETMASTER Trademark for the following reasons: the dominant and distinctive component of the Disputed Domain Name is “ticketmaster”, which is identical to Complainant’s TICKETMASTER Trademark; the addition of the generic geographical indicator, “panama”, does not make the dominant and distinctive element “ticketmaster” less distinctive; and the ending “.com” is a generic top level domain that is not sufficient to render a domain name dissimilar or to prevent consumer confusion.
As indicated above, the Panel accepts Complainant’s contentions.
The Panel concludes that the first requirement of the Policy is met.
B. Rights or Legitimate Interests
Complainant contends (and the Panel accepts as uncontroverted and convincing) that Respondent has no rights or legitimate interests in the Disputed Domain Name.
Complainant contends it has not licensed or otherwise permitted Respondent to use the TICKETMASTER Trademark or to apply for or use any domain name incorporating the mark; that Respondent is not commonly known by the Disputed Domain Name and has not acquired any trademark or service mark rights thereto; and that, to the best of its knowledge, Respondent has not applied for or obtained any trademark or service mark registrations for the Disputed Domain Name.
Respondent has provided no arguments or evidence of rights or legitimate interests to counter Complainant’s contentions on this issue. By virtue of the legal rights in the TICKETMASTER Trademark (and in particular, those provided by its aforesaid US trademark registrations), Complainant convincingly argues that Respondent has no rights or legitimate interests in the Disputed Domain Name. The Panel, especially in the absence of any response from Respondent, considers that the circumstances described in paragraph 4(c) of the Policy, of proof of rights or legitimate interests by Respondent in the Disputed Domain Name, do not exist either.
The Panel concludes that the second requirement of the Policy is met.
C. Registered and Used in Bad Faith
Complainant contends (and the Panel accepts as uncontroverted and convincing) that Respondent registered and uses the Disputed Domain Name in bad faith, as detailed next.
Complainant contends that the previous Whois record for the Disputed Domain Name identified Respondent as at least territorially sited within the United States of America: “IMPanama, Donna Hawley, Miami, FL”.
Complainant contends that when Respondent registered the Disputed Domain Name, it had at least constructive knowledge, and probably actual knowledge, of the TICKETMASTER Trademark by virtue of the aforesaid United States trademark registrations that predate by at least several years the registration of the Disputed Domain Name (noting that aforesaid trademark registrations are effective in the previously identified United States of America jurisdiction of Respondent).
The Panel finds that Respondent registered the Disputed Domain Name in bad faith.
Complainant contends that notwithstanding Respondent’s constructive notice of Ticketmaster’s prior rights in the TICKETMASTER Trademark and probable actual knowledge thereof, Respondent obtained the Disputed Domain Name to intentionally attract Internet users to Respondent’s web page by creating a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s web site; and that in fact, the Disputed Domain Name resolves to a web site that offers ticketing services for concerts in Panama in direct competition with Complainant, in an unlawful attempt to siphon off Internet visitors seeking Complainant’s “” website.
Complainant contends that, in late 2007, it sought to enforce its trademark rights by filing a civil action in a District Court of the United States of America (Ticketmaster Corporation v. Hawley, No. 1:07-CV-23091), and that, after several attempts, failed to serve Respondent primarily because no person named “Donna Hawley” and no business named “IMPanama” could be found at the Miami, Florida address. Complainant contends that because its service efforts were frustrated by Respondent’s false contact information, it was forced to withdraw its civil action without prejudice.
Complainant contends that although Respondent’s previous address in Florida was completely inaccurate, Respondent’s present Whois record consists of the same street address but now places that address in an unknown city in Panama. Complainant contends that the use of false contact information in connection with registering domain names confirms Respondent’s bad faith, and cites ample WIPO UDRP Case precedents (among them, Wachovia Corp. v. Carrington,WIPO Case No. D2002-0775).
The Panel accepts that Respondent uses the Disputed Domain Name in bad faith, as reasoned and as supported by Complainant’s evidence.
The Panel concludes that the third requirement of the Policy is met.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name be transferred to Complainant.
Mark Ming-Jen Yang
Sole Panelist
Dated: June 2, 2008
Full & Egal Universal Law Academy